o Paternalistic Policies such as wearing of helmet while driving two wheeler
o Moral legislation such as prohibition of abortion
o Redistribution of wealth or income

Nozick rejects the idea that a just distribution consists of a certain pattern-such as equal income, or equal utility, or equal provision of basic needs and rather focuses on how such distribution came into existence.

Nozick argues that distributive justice depends on two requirements:-

o Justice in initial holdings – if the resources you used to make your money were legitimately yours in the first place. (should not be stolen or taken by force or fraud)
o Justice in transfer – if you made your money either through free exchanges in the marketplace or from gifts voluntarily bestowed upon you by others.

For Nozick, if above two requirements are met one is entitled to what he is and cannot be deprived of the same by the state without his consent.

He criticizes employment of distributive justice for trying to create equality as it:-

o Needs repeated intervention in the free market to undo the effects of the choices people make
o It violates the rights of those whose wealth is being taken away

Taxation of earnings from labour is on a par with forced labour.

Based on concept of self-ownership

If an individual owns himself then he owns his labour and accordingly also the fruits of his labour

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Rawls’ theory of justice

Veil of ignorance – When we isolate our political, physical, social identity along with our advantages and disadvantages we would choose an original position of equality. The principles agreed to in such a situation would be just.

Rawls’s idea of the social contract is a hypothetical agreement in an original position of equality.

Rawls argue that in such situation utilitarianism and libertarianism would be rejected because of risk of being in oppressed class.

He gave two principles of justice that would emerge in such a situation:-

o Equal basic liberties for all citizens which takes priority over considerations of social utility and the general welfare.
o Difference Principle – Only those social and economic inequalities will be permitted that work to the advantage of the least well off members of society.

Can consent create an obligation on its own, or is some element of benefit or reliance also required?

Actual contracts carry moral weight insofar as they realize two ideals-autonomy and reciprocity.

Voluntary consent does not guarantee the fairness of the agreement and is not sufficient for create a binding moral claim.

An obligation to repay a benefit can arise without consent is not always morally plausible.

Wherever there is an obligation, there need not been an agreement. Eg – Tort law is not based on consent but on obligation to pay.

Contract based on consent are also not fair due to disparity in party’s bargaining powers and knowledge.

Thus, in veil of ignorance when a contract is reached it is just because it removes arbitrary contingencies that arise because of party’s existing knowledge.

Rawls explain why people would not gamble while forming social contract as in his opinion people will not gamble on choosing principles which will govern their fundamental life prospects. Also, the veil of ignorance would also ensure that they do not know they like to gamble.

The distribution of income and wealth that results from a free market with formal equality of opportunity cannot be considered just. The most obvious injustice of the libertarian system “is that it permits distributive shares to be improperly influenced by these factors so arbitrary from a moral point of view.”

Rawls believes that the meritocratic conception corrects for certain morally arbitrary advantages, but still falls short of justice. “Even if it works to perfection in eliminating the influence of social contingencies,” the meritocratic system “still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents Rawls does not advocate for absolute equality and using the difference principle creates exception for gifted individuals to develop and exercise their talents, but with the understanding that the rewards these talents reap in the market belong to the community as a whole.

Objection to Difference Principle:-

o Incentives – Critics argue that if incentive is reduced for talented individuals what is there to stop them from working altogether. Rawls replies saying that differences in form of incentives are fine as long as these individuals’ activities help the lower most section of society.
o Effort – Critics argue that when Rawls rejects meritocracy what about those who were meritorious due the amount of effort they had put it in. Rawls replies that even effort may be the product of a favourable upbringing. Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is itself dependent upon happy family and social circumstances

Rawls also rejects the moral desert. (Moral desert is what a person deserves.)

Rawls makes an important but subtle distinction-between moral desert and what he calls “entitlements to legitimate expectations.” The difference is this: Unlike a desert claim, an entitlement can arise only once certain rules of the game are in place. It can’t tell us how to set up the rules in the first place.

Rawls argues that distributive justice is not about rewarding virtue or moral desert. Instead, it’s about meeting the legitimate expectations that arise once the rules of the game are in place.

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Roscoe Pound

As per Pound, in primitive societies the law aimed at nothing more than keeping the peace.

In his opinion law’s task post 18th century merged with the aim of ‘bringing about and maintaining a maximum strength and efficiency in organised society, identifying the political organisation of society with civilisation.

His personal view was that law’s task is to recognise and adjust competing interests with a minimum of friction and waste.

He identified legal and judicial activity as a form of social engineering.

By ‘social engineering’ Pound meant that it was a comparison of the legal task to that of a problem-solving design engineer who tries to make the machine run more efficiently and smoothly.

Interests

Interests are claims that persons make of the legal system.

Some of these claims are already recognised by law, but there are others that are not so recognised.

Pound identified three kinds of interests:

o Individual interests – relate to person, property and personal relations such as marriage.
o Public interests relate to the dignity of the state as a juristic entity.
o Social interests include the interest in public safety, peace and order, and public health.

These interests are frequently in conflict.

In order to resolve conflicts courts should secure as much as possible of the scheme of interests as a whole with the least friction and waste.

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Aquinas came around the time when the power of the church was declining and concept of secular state was gaining momentum.

Aquinas intended to counter this secularism wave through a rational argument.

He argued that political state is based on the natural needs of man.

The order, as God is responsible for both needs and their satisfaction. state is part of a divine

The controlling principles of the universe supplied the ultimate criteria by which human laws must be judged.

Aquinas then divided law into further four categories:-

o Eternal
o Natural
o Divine
o Human

Eternal law

Aquinas believed that universe is the creation of God.

He argued that since God is rational by nature, the universe cannot be random.

Eternal law is divided into two more categories:-

o Laws that are subject of physical, biological and social sciences and according to which universe functions
o laws of behaviour that distinguishes right and wrong conduct

Eternal law is not knowable as to know eternal law is to know God’s mind and that is not humanly possible.

Aquinas illustrated this using example of sun by arguing that we do not know what sun is like but merely an idea from its effects on earth.

Since every person is subject to eternal law why there exist wrongdoers. Aquinas gives two reasons:-

o human beings have imperfect knowledge of the eternal law and therefore are prone to error
o the eternal law rewards good people with happiness and punishes the bad ones

Natural Law

Laws forming part of the eternal law that is followed despite not knowing them.

Human beings follow laws of nature such as eat, drink and sleep despite not knowing about the biological functions of human body,

Natural law is that part of the moral eternal law that rational human beings understand by their God-given reason, which is denied to physical objects and other animals.

Divine law

It consists of the Ten Commandments and other authoritative Scriptures.

It is important because:-

o Natural law only helps in survival to aspire to a higher supernatural end directions are needed which are given in divine laws.
o Human understanding to interpret natural rule is flawed and may lead to wrong interpretation. Hence, cardinal moral rules need to be prescribed.
o Human made laws cannot govern direct interior acts.
o Human laws cannot punish evil all evil without hurting common good. Eg – Cannot ban virtues like lust, selfishness, impatience etc.

Human law

It consists of law established by custom or by the legislative acts of the state.

Aquinas held that the moral authority for human lawmaking is found in that part of the eternal law which reason reveals to man in the form of natural law.

There are two ways in which human law is derived from the natural law:-

o By deriving logical consequences from the self-evident premises of natural law
o By determining the way natural law applies to particular types of cases

There exists three pre-conditions for the recognition of an enactment as a law at all:-

o Law is made for the common good
o Law is made by the whole people or by God’s vice regent for the whole people, who is the monarch ruling by divine right
o Law is promulgated

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Scandinavian Realism – Law cannot be explained by physical facts alone and exists by the psychological effects caused by certain facts.

It sought to explain how the law changes the behaviour of people

This school of thought was opposed to metaphysical speculation and was concerned with the general investigation of the ‘fundamental facts’ of legal systems.

Karl Olivecrona

He believed that a monopoly of force is the fundamental basis of law.

Law is produced by natural causes such as the actions of human beings that have natural effects in the form of actual influence on the conduct of judges and individuals.

Law’s effect remains psychological as that the law is of binding character is an idea in human mind and nothing in the outside world corresponds to this idea.

Olivecrona rejected the Austinian’s concept of law as a command. He suggested that the law consists of imagined actions of imagined people (such as judges) in an imaginary situation.

Despite rejecting law as command he stated that law consists mainly of rules about the application of force.

He argued that it is the law that influences morality and not otherwise.

Law’s effectiveness depends on its moral influence but this moral influence is required only for few fundamental rules and for the rest of the rules it is sufficient that people consider adherence to law as a moral obligation and this morality is not counterbalanced by arbitrary or unreasonable jurisdiction.

Alf Ross

He made an attempt to describe the nature of a rule by using his description of norms and legal rules.

He stated that a norm has two aspects:-

o a directive to do or not something;
o correspondence of the directive to some social facts

In order to be a norm it must have both the above prescribed aspects.

Acts done out of practical necessity and not out of a feeling of social or moral obligation are not norms.

In order for directive to be a norm it must be perceived as binding.

Binding here does not mean fear of repercussion in case of noncompliance but rather internal feeling of obligation that norm is valid.

Legal rules are different from other norms in the sense that they employ use of coercion. They contain directives to those in authority.

Their effectiveness depends on:

o allegiance of officials to the constitution and the institutions under it; o non-violent sanctions of disapproval and criticism that are implied in this attitude

Since legal rules are directed to officials, they are not generally enforced but are followed voluntarily.

From the psychological point of view, there are two sets of norms:-

o Primary Legal Norms – Followed generally by citizens whether or not there is coercion.
o Secondary Legal Norms – prescribe how cases are to be decided

From logical point of view only secondary legal norms exist

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American Realism – Law is not what is written in statutes and it depends on how courts choose to interpret them.

Oliver Wendell Holmes

Law is the product of experience and not logic.

Law is nothing more than the predictions of what courts will or will not do.

Law may exist independent of and may even be contrary to sovereign’s will. He argued that customs are as effective as statutory laws when it comes to regulation.

Law is the product of economic and social powers and adapt new connotations as per the need of the time.

Law exists even prior to its recognition by courts.

Rule of Judiciary

Final arbiter in common law countries is not the legislature but the highest appellate court.

Judges should recognize their duty to weigh considerations of social advantage and shed away pretensions of not legislating laws as in Holmes opinion judges do (legislate) it anyway unconsciously.

Law from viewpoint of the Bad Man

Holmes saw law as set of predictions.

“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

He proposed the thesis of a ‘bad man’ who tests law for him it doesn’t matter what the law is but what the particular court will decide in his case.

“If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

Karl Llewellyn

Law is not like a mathematical function where the judge could simply apply the rules and reach to a conclusion.

Rules are ambiguous making leeway for judges to apply their discretion while adjudicating an issue.

Since society is constantly evolving rules need to be checked as to how much they serve the society.

‘The law as it is’ is shaped by moral considerations that the courts apply in the guise of logic.

Courts need to actively align the law with justice.

Rules as a criterion to check working of courts would lead to an unfair representation of the way courts actually decide cases.

In order to figure out the courts a person must look beyond the rules and study the various judicial opinions on a particular subject so as to understand how the courts have used the a particular rule in different situations.

Following above realist lawyer will deeply engage with past precedents and will find out a particular rule may be applied but this is still merely a prediction as they are not certain if precedent will be followed in the next case.

Since, rules content is dynamic and not static varying from each case to case can they really be considered a rule. Llewellyn considered that rules properly understood, serve the dual purpose of promoting legal certainty while allowing judicial freedom to do what is just.

The Grand Style

Grand Style is that style in which judges give themselves the authority to reshape the law according to their wisdom, provided that the grounds for doing so are explicitly stated and discussed.

Llewellyn believed that judges of appellate United States were at their best during first half of nineteenth century when they used the grand style.

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Law cannot be understood in isolation to culture of a society. Different societies with different culture can have different meanings of law.

In the Anglo-American legal culture, power to make law does not lie with physical force but with moral authority.

The characteristic that makes people obey law is its integrity. People will obey even an unjust and unfair law as long as it has integrity as a whole. There are two principles of political integrity:

o Legislative principle: Legislature should try to make law consistent and morally coherent with the principles established within the legal system.
o Adjudicative principle: Judiciary should also make an attempt to view the law as coherent as far as possible by interpreting rules and statues in a manner consistent with the previous regime.

Dworkin on Principles

As per Dworkin, Law consist of rules as well as principles.

When there is no rule judges may resort to principles already imbedded in the legal system.

Dworkin argued that judges must always use principle in hard cases and not use policy decisions.

Dworkin argues that if judges do not make consistent decisions then that will undermine the faith of the individuals in the judiciary.

Principle does not automatically answer the legal question and they may be even contradicted by an official rule. The judge must consider the relevant principle or rule while making a decision.

Dworkin assumes a fictitious judge, Hercules, who will go through all the rules and the principles till he gets an answer to the problem. He assumes that every question can be answered from within the existing set of rules and principles.

Judges could make mistake but the fact that they may err does not imply that there is no right answer to the problem within the legal system.

A good legal system endeavours to reduce the overall number of mistakes.

Judges could also import morality while making a decision but the morality has to be of the system and not that of the judge.

Dworkin on Law

Dworkin rejected theories providing a universal description of law.

He considered that each community has its own understanding of law and therefore any attempt to universalize the definition of law is futile.

He identified the following characteristics of his Anglo American culture:-

o Law consists of rights and responsibilities of citizens.
o Political decisions of the ‘right sort’ are the source of rights and responsibilities. These decisions include the constitution, legislation and judicial decision.
o State’s coercive acts could only be justified to enforce the rights and responsibilities established by past political acts.

Dworkin on Use of Force

Dworkin advocates for limited use of force because if courts decide as per their own whims and fancies the law will become unpredictable and arbitrary.

Another advantage was this led to a kind of equality which led to like treatment of persons in like situations. Dworkin did not require absolute equality.

Dworkin also insisted on integrity of law to ensure that law meets the moral demand.

Dworkin on Interpretation

Dworkin’s concept of integrity of law demanded that laws be interpreted in a manner that they remain consistent to earlier established rules and principles.

In hard cases, Hart stated that judges act as deputy of legislature and it is here that Dworkin disagreed.

Dworkin expect a judge to not legislate in hard cases but rather gather a solution from the existing set of rules and principles to maintain integrity and consistency.

He identified three stages in the process of interpretation:-

o Pre-interpretive stage

Interpreter (Judge) identifies relevant material such as statutory provisions and case law

o Interpretive stage

Interpreter determine the reason for treating the legal document as relevant to the case

Eg:- Application of Copyrights Act in a dispute related to copyright

o Post-interpretive stage

At this stage, interpreter must identify what will better serve the justification he accepts at the interpretive stage

The justification is that the system as a whole promotes integrity of the law.

Dworkin on Law as Chain Novel

Dworkin compared the law to a chain novel and the role of the judge to that of a chain novelist.

Each novelist in the chain interprets the chapters he has been given in order to write a new chapter, which is then added to what the next novelist receives and so on.

Each has the job of writing his chapter so as to make the novel being constructed the best it can be, and the complexity of this task models the complexity of deciding a hard case under law as integrity

Dworkin on Law & Morality

Dworkin considered a community’s law different from its popular morality.

He defined popular morality as the set of opinions about justice and other political and personal virtues that are held as matters of conviction by most members of a community, or perhaps of some moral elite within it.

In Anglo American culture, integrity is essential feature of law so accordingly law may fail popular morality while retaining its integrity.

He argued that there is moral value in the integrity of law even when its results are unwelcome.

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Norms and Facts

Facts consist of things and events in the physical world and revolve around what ‘is’.

Norms unlike facts focus on what ‘ought’ to be and not what ‘is’.

X kills Y is a fact. Whether X ought to be punished for committing murder of Y or not is a norm.

Norms are of two types – legal norms and moral norms.

Legal norms are coercive unlike moral norms which are not.

Legal norms arise from validation by another valid norm.

Grundnorm – The norm on which all other norms are based and beyond which no norm is presupposed.

Pure Theory of Law

Kelsen calls his theory as ‘pure theory of law’ as it attempts to distinguish between law and what is not strictly law

His theory distinguishes law from facts and morals

The main ingredients of Kelsen’s pure theory are derived from Kant’s theory:-

o the world of things (noumena) and the world of ideas (phenomena);
o what ‘is’ (sein) and what ‘ought’ to be done or not done (sollen).

When a law is made the object of the law say it is to provide speedy trials for certain offences. Then the object is a norm as the act may not be able to always provide for a speedy trial but the enactment of the act is a fact.

A norm need not provide a rule of conduct that can be known beforehand.

Not every expression of will directed to a person is a norm. Robber threatening a person to handover money a gunpoint is not a norm.

In order for a norm to be objective it must be authorised by another valid norm.

Imputation – Effect of a norm

A norm creates a duty to behave in a certain way by imputinga sanction to the breach of that duty.

Grundnorm

Grundnorm is an interpretation of a set of facts. It is not derived from facts but is an interpretation of them.

Its effectiveness is directly dependent on the effectiveness of the norms that are derived from it. E.g. – If government carry out genocidal activities, people will eventually start disobeying these activities and there will come a time when they will stop obeying the government itself.

Effectiveness is a condition of validity but is not validity itself.

A norm may be valid even when it fails on occasion to be effective in shaping conduct.

Occasional infringement of a norm will not render the norm invalid rather it is in the nature of norms that they are capable of being violated, for if a norm is always followed it is not a norm but a law of nature.

Kelsen on Revolution

In a revolution (Peaceful or Violent) the grundnorm may be replaced by events such as a military coup or grant of independence from colonizer to its colony.

During revolution even if grundnorm is changed laws made by previous regime governing citizenry remain unchanged and do so because of tacit consent of new grundnorm.

The content of these norms remains unchanged but the reason for their validity changes as the previous grundnorm is displaced by a new grundnorm.

Hart v. Kelsen

Kelsen says that the normativity of law is based on a grundnorm, whose validity we accept through tacit or explicit consent and by doing so, we to all the consequent norms of the legal system.

Hart on the other hand says that normativity of law is based in social practise. To know what we ought to do, we need to use the fundamental rule of recognition which is nothing but a set of legal criteria that validates a law.

Hart’s theory is meant as an analytical description of actual practices, while Kelsen sought a theory purified even of sociological observation.

Hart’s view of the normative reduced it to a combination of certain types of social facts, while Kelsen resisted any reduction of “normative’ to facts.

Hart’s theory tried to track and explain actual social practices, Kelsen’s theory tended to be more abstract-appropriate for what purported to be a “pure theory”.

Hart’s analysis builds on close attention to actual practices and linguistic usage. On the other side, Kelsen is offering a kind of logical analysis of law and of normative thinking in general.

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Background Facts:

A woman in order to avenge her personal grudge against her husband informed of his disliking of Nazis to the Nazi authorities. After the Nazi government was overthrown the husband pressed a charge against his wife for illegally depriving him of his liberty. The wife defended her act on grounds of its legality as under Nazi rule passed by the competent legislature and with her being an obligation to follow the law. Court held wife guilty and found that the statute under which husband was found guilty was contrary to the sound conscience and sense of justice of all decent human beings.

Hart’s Position

Hart being a positivist criticized the judgment for disregarding the written law.

Hart argued that the law remains law even if it does not meet the demands of external moral criteria.

Hart said ‘Law is not morality; do not let it supplant morality’.

Hart said that a law being inherently evil and how one ought to react to the law are two separate issues and merely because a law‘s foundation is on evil it cannot be said to be law.

Hart also stated that if wicked/immoral laws are considered valid that does not create any problem when a choice between two evils has to be made in extreme circumstances.

Hart said that a legal system might show some conformity with justice or morality but does that does not follow that a rule of recognition a criterion of legal validity ought to include morality in it.

Law and morality are notinterchangeable terms and law cannot be strike down merely if it’s devoid of any moral content.

Fuller’s Position

Fuller stated that law must possess certain characteristics if it is to be classified correctly as ‘law’ and one of most important of such characteristic is ‘inner morality’.

For Fuller if law contains no morality it is not law.

He also criticized Hart for ignoring the inherent inability of Nazis to be considered as a legal system.

He then criticizes positivism itself and states that the fundamental positivism that law must be separate from morality. He considers this postulate incorrect as it denies the possibility of any bridge between the obligation to obey law and other moral obligations.

Fuller considered law to be a collaborative effort to aid in the satisfying of mankind’s common needs with each rule of law having a purpose related to the realisation of a value of the legal order.

Since, purpose and values are closely related a purpose may be considered as a fact and a standard for judging facts and thereby, removing the dualism between ‘is’ and ‘ought’.

Fuller considered that any regime that assists in the spread of, injustice has forfeited its right to expect allegiance from its citizens.

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Background Facts:

Wolfenden Committee had to prepare a report on the issue of legalising homosexuality and prostitution. The Report came in favour of legalisation as it stated that the law need not concern itself with immorality. HLA Hart, Lord Patrick and Lord Devlin took part in the debate.

The primary reason for the decriminalisation of homosexuality was on basis of:

Freedom of choice

Privacy of morality

Devlin’s position

Law without morality destroys freedom of conscience and is the paved road to tyranny.

He talked about society’s ‘moral fabric’ which the society holds together and if the criminal law does not respect and reinforce society’s morality it will destroy the ‘moral fabric’ leading to the disintegration of society.

Any category of behaviour that is capable of posing a threat to social cohesion can be governed by morals laws. They are justified as they protect society against the disintegrating effects of actions that undermine the morality of a society.

There is no limit of reach of la and thereby immorality could also be governed by law. (Immorality is what every right-minded person considered immoral)

Devlin suggested that common morality could be determined from asking ‘what is acceptable to the ordinary man, the man in the jury box, who might also be called the reasonable man or the right-minded man’.

Devlin thus made following recommendations:-

o Privacy should be respected.
o Law should only intervene when society won’t tolerate certain behaviour.
o Law should be a minimum standard not a maximum standard.

Hart’s position

Hart‘s position was based on Mills harm principle. (No act should be interfered with it unless it affects the rights of another person)

He warned against dangers of ‘populism’ and was against the view of imposing majoritarian perception of morality over the remaining members of the society.

Hart also stated that a mere change in moral views does not lead to disintegration of society.

Hart’s approach is much more individualistic to that of Devlin.

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